Archive for the 'Fourth Amendment' Category

The Lamp of Experience: Constitutional Amendments Work

Posted by on Mar 09 2014 | Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, First Amendment, Fourth Amendment, Freedom of Speech, History, Natelson Rob', Rob Natelson, U.S. Constitution

(This article originally appeared in the American Thinker.)

Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much. It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.

The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court. Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions. Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery. (Yes, some of them really said that.)

The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.

The “too much” line, however, has been losing its persuasiveness. New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.

Hence the shift to the “too little” argument. Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.

Opponents will soon find their new position even less defensible than the old. This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.

* * * *

The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable. They saw the amendment mechanism as a way to:

* correct drafting errors;
* resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
* respond to changed conditions, and
* correct and forestall governmental abuse.

The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons. Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect. Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.

Following are some examples:

Correcting drafting errors

Although the Framers were very great people, they still were human, and they occasionally erred. Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President. They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.

The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes. The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency. (My reference to a particular amendment does not mean I agree with every provision in it.)

Both the Twelfth and Twenty-Fifth Amendments are in full effect today.

Resolving constitutional disputes and overruling the Supreme Court

The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation. The amendment process was a way of resolving interpretative disputes.

The founding generation employed it for this purpose just seven years after the Constitution came into effect. In Chisholm v. Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts. The Eleventh Amendment reversed that decision.

In 1857, the Court issued Dred Scott v. Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans. The Citizenship Clause of the Fourteenth Amendment reversed that case.

In the 1970, the Court decided Oregon v. Mitchell, whose misinterpretation of the Constitution created a national election law mess. A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.

All these Amendments are in full effect today, and fully respected by the courts. Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.

Responding to Changed Conditions

The Twentieth Amendment is the most obvious example of a response to changed conditions. Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.

Other amendments as well were wholly or partially triggered by changed conditions. The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters. But it was adopted only after social changes had caused widespread breakdown in the prior election system. (That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.

Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness. When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics. During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible. Without these changes, I doubt the Nineteenth Amendment would have been adopted.

Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.

Correcting and forestalling government abuse

Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V. Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged. Before looking at the problems, however, let’s look at some successes:

* We adopted the Thirteenth, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to correct state abuses of power. All of these are in substantially full effect.

* In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it. It limits congressional pay raises, although some would say not enough.

* In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms. Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.

Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching. I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either. But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.

In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption. The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth. Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.

What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years. No reasonable person would classify 150 years of effect as anything but a stellar political success. Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.

“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said. “I know of no way of judging of the future but by the past.”

In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work.

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Remote gun detectors

Posted by on Feb 29 2012 | Fourth Amendment, guns, Right to carry

A few weeks ago, the New York Times reported that the NY Police Department was working with the Department of Defense on a remote firearms detector. According to the article, the detectors are  presently effective at a 3 to 5 meter range at finding guns that are being carried concealed. The objective is to improve the detectors so that they work from a distance of 25 meters.

Commentators, what do you think of this? Does is raise Fourth Amendment concerns? Second Amendment issues? Any other constitutional or policy questions?

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Cert. grant in Millender v. LA: Qualified immunity for an unconstitutional general warrant to seize firearms?

Posted by on Jul 10 2011 | Constitutional Law, Fourth Amendment, guns, Qualified immunity, Sovereign immunity

(David Kopel)

The Supreme Court recently granted certiorari in Millender v. Los Angeles. Here are the background facts: Bowen shoots at his ex-girlfriend with a sawed-off shotgun. The police obtain a search warrant for the home of Bowen’s 73-year-old former foster mother. The warrant application does not disclose that Bowen last lived with his foster mother 15 years ago. (The girlfriend suggested to the police that Bowen might be hiding there.) The warrant authorizes the seizure of all firearms on the premises, not merely the particular gun which had been used in the crime against the girlfriend.

The police executed a 5 a.m. dynamic entry, and in the course of their search, seize a firearm which is lawfully owned by the 73-year-old woman, Augusta Millender. She sues, and the 9th Circuit en banc rules that the warrant was objectively unconstitutional. The officer who procured the warrant (and Los Angeles, by respondeat superior) are not entitled to qualified immunity, because the warrant to seize all firearms was so clearly unconstitutional, based on settled law.

In the certiorari grant, the Questions Presented are:

This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344–45 (1986). The Questions Presented are: 1. Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search? 2. Should the Malley/Leon standards be reconsidered or clarified in light of lower courts’ inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

The phrasing of the Questions Presented further suggest that attorneys for Respondents have an uphill battle. The Supreme Court docket page is here; the full history of the case in the district court and the Ninth Circuit, with full text of many of the relevant documents, is available at the website of California attorney Chuck Michel. Michel is, in my opinion, one of the top two firearms law lawyers in California, the other being Don Kilmer.

In conjunction with Stephen Halbrook, Michel filed an amicus brief in Millender, on behalf of the National Rifle Association and the California Rifle and Pistol Association Foundation. The brief explains how the Fourth Amendment’s prohibition on general warrants is closely entwined with the right to arms; for example, the 1662 gun ban of the wicked Stuart king Charles II was enforced by general warrants.

The Questions Presented seem to presume the unconstitutionality of the general warrant, with the only issue before the Court being qualified immunity. The Halbrook/Michel argument on qualified immunity points out that

Detective Messerschmidt knew that the only firearm involved in the crime was a black, pistol-gripped, short barreled shotgun.  He nonetheless drafted a general warrant authorizing search and seizure of all firearms and firearm parts from the home of an elderly woman, her daughter, and her grandson, knowing that the suspect (Bowen) did not even live in that home.  Messerschmidt cannot now rely on the defense that he persuaded others up the chain to approve his general warrant.

It bears repeating that the affidavit failed to disclose that the residence was that of an elderly lady and her relatives, not that of the suspect.

Although Los Angeles argues that the unconstitutionality of the warrant was not clearly established at the time the warrant was executed, Halbrook and Michel point to:

Groh v. Ramirez, 540 U.S. 551 (2004), aff’g Ramirez v. Butte-Silver Bow County, 298 F.3d 1022 (9 th Cir. 2002), involved a general warrant obtained to search for unregistered firearms, but the warrant contained no list of firearms to seize.  Id. at 554.  A list of firearms was included in the affidavit, but not attached to the warrant.  Id.  Only lawful firearms were found.  Id. at 555.  The homeowners later filed a civil rights action for damages.  Id.  The Supreme Court upheld the Ninth Circuit’s conclusion in Groh that the search was unlawful and that the agent who secured the warrant and led the search could not rely on the defense of qualified immunity.  Id. at 563–566.

Moreover,

In Groh, the law was clearly established in the very text of the Fourth Amendment.  Case law condemning general warrants in England dates back to at least 1765 in Entick, and in the United States, to 1886 in Boyd.  The general warrant here–to search for all firearms and related items, when only a black, pistol-gripped, short-barreled shotgun was at issue, and it had little or no connection to the house to be searched–clearly violated the Fourth Amendment, would be known to do so by any competent officer, and was not sanctified by being rubber stamped by higher ups.

Michel has announced that NRA and CRPAF will file an amicus brief in the Supreme Court, in part to explain to the Court the problem of law enforcement officers seizing large numbers of lawfully-possessed firearms in order to boost gun seizure statistics.

I hope that at some point Orin Kerr will be able to provide his insights on Millender.

This Court has held that police officers who procure and execute warrants later
determined invalid are entitled to qualified immunity, and evidence obtained should not
be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable.” United States v. Leon,
468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344–45 (1986). The
Questions Presented are: 1. Under these standards, are officers entitled to qualified
immunity where they obtained a facially valid warrant to search for firearms,
firearm-related materials, and gang-related items in the residence of a gang member
and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her,
and a district attorney approved the application, no factually on point case law
prohibited the search, and the alleged overbreadth in the warrant did not expand the
scope of the search? 2. Should the Malley/Leon standards be reconsidered or clarified in
light of lower courts’ inability to apply them in accordance with their purpose of
deterring police misconduct, resulting in imposition of liability on officers for good faith
conduct and improper exclusion of evidence in criminal cases?

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